The District of Columbia Bar Legal Ethics Committee has released a new opinion
A lawyer’s ethical obligations to prospective clients are set forth in Rule 1.18 of the D.C. Rules of Professional Conduct (“the D.C. Rules”). On its face, Rule 1.18 imposes only two obligations on a lawyer. First, regardless of whether a client-lawyer relationship ensues, Rule 1.18(b) prohibits “a lawyer who has had discussions with a prospective client” from “us[ing] or reveal[ing] information learned in the consultation, except as permitted by Rule 1.6.” Because “the duty of confidentiality . . . attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established,” a lawyer’s obligations under Rule 1.6 also extend to information relating to a prospective client consultation—e.g., notes regarding the lawyer’s mental impressions of the prospective client or matter, legal research, or other information obtained through subsequent investigation. Second, Rules 1.18(c) and (d) prohibit a lawyer from “represent[ing] a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received a confidence or secret from the prospective client,” unless both the affected client and the prospective client have given informed consent.
Where a prospective client elects not to retain the lawyer’s services, or the lawyer is either unwilling or unable to represent the prospective client, two questions remain. First, what ethical obligation, if any, does a lawyer have to preserve either the information that the lawyer learned in the prospective client consultation or other information relating to the consultation? Second, what ethical obligation, if any, does a lawyer have to turn over such information to the prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter?
Until such time as a final decision is made regarding whether to form a client-lawyer relationship, a lawyer has an obligation under Rules 1.18 and 1.15 to safeguard property, including intangible property, entrusted to the lawyer by the prospective client. For example, in addition to tangible property, a prospective client may entrust a lawyer with certain intellectual property during a prospective client consultation that the lawyer must safeguard while evaluating whether to represent the prospective client. Once a final decision is made not to form a client-lawyer relationship, Rules 1.18 and 1.15 require the lawyer to return such property to the prospective client or otherwise dispose of it in accordance with the prospective client’s instructions. In the absence of any substantive legal or contractual obligation to do so, however, the lawyer has no obligation to preserve or turn over to a prospective client information learned in or relating to a prospective client consultation—including the lawyer’s notes or other research or information that the lawyer generates or obtains—in which the prospective client has no property interest.
(Mike Frisch)
